From policy to legislation A guide to legislative drafting

1. From policy to legislation A guide to legislative drafting David Noble and Bill Moore Parliamentary Counsel Office http://www.pco.parliament.govt.nz/ 30 September 2009

2. Overview • Background – PCO role • Main points – Instructors • Central aims and key results

3. Background • Role of PCO in drafting legislation • Quality of legislation depends on appropriate collaboration between instructor and drafter • Avoiding role confusion and rolereversal

4. Policy formation Cabinet approves policy Cabinet approves legislation Introduction First reading Select committee Second reading Committee of whole House Third reading Implementation Legislative process drafting amendments amendments

5. What is PCO? • Independent Office of Parliament • Attorney-General (Statutes Drafting and Compilation Act 1920) • 2 divisions - drafting and access to legislation (compilation) • 31 drafters

6. What is PCO?―cont’d • draft all Government Bills (other than tax) • draft all Government regulations • draft other legislative instructions (eg, Royal Commissions of inquiry) • local Bills (if asked) • private Member’s Bills (if A-G directs) • Court rules • Speaker’s Directions

7. What do we do? General • take instructions • give legal effect to policy • try to produce plain English drafts • try to identify and solve problems • test policy and undertake legal analysis

8. Who does PCO act for? • We act for the Minister in charge of a portfolio to which a project relates • Ministry derives its authority to instruct us from the Minister • Independent of the department • Privilege (like solicitor and client)

9. Where are we coming from?the workings of the drafter’s mind The workings of the drafter’s mind • Often thinks about the “statute book” as a whole • Often the first external person to “test” the second level (implementing) policy

10. Where are we coming from?the workings of the drafter’s mind―cont’d • PCO style • Plain English drafting • Conscious of current and future hurdles (LAC, BORA vetting, and parliamentary procedure)

11. PCO guide • preparing instructions 7-11 • responding to drafts 13-14 • developing RTDs & SOPs 17-18 • checklist 23 • map 32

12. Main points • Shared vision • Procedural awareness • Well-developed policy • Generous instructions • Ample notice

13. The role of instructor • Provides PCO with comprehensive instructions • Deals with legal and legislative issues arising from a legislative proposal (usually performed by a lawyer) • Co-ordinates lead instructing organisation’s comments • Resolves, or is responsible for resolving, any differences of opinion within that organisation • Has authority to speak on behalf of that organisation • Manages the timetable for the project • Manages the relationship between PCO, policy advisers, and operational people or other experts

14. Initial Instructions • One way of thinking about initial instructions is to ask yourself “What information would I need in order to understand what this project is all about?” • The answer to that question is what the instructions should contain • There is another way of thinking about the question • This is something we want to happen • This is why it cannot happen without legislation or a change to existing legislation • This is how we think the law needs to be changed in order for it to happen

15. Initial instructions: what should they contain? • All relevant • policy approvals • Cabinet papers and papers to the Minister • background information • legal opinions and cases • proceedings which are in contemplation • An indication of • the anticipated time frame • when any further instructions are likely to come (if not all provided in the first instance) • Pointers to related legislation

16. Responding to drafts • Read for internal consistency • Read for readability • Identify new issues (new issues will almost certainly become apparent) • Identify mistakes • Run the draft through practical scenarios: does it work? • Is there anything missing?

17. Responding to drafts―cont’d • Say why something is wrong (not just that it is wrong) • Give examples of scenarios (paint us a picture) • Main instructor should co-ordinate and filter all comments • Main instructor should add value • Main instructor should advise of final outcome (organisation’s view) on issues (it may well be unnecessary to advise PCO of all preliminary views) • Try not to let your response drift, strike while the iron is hot and thematter is fresh in the drafter’s mind

18. When does the instruction process fail? • When expectations are not clear • When matters are left too late • When the personnel running the project are insufficiently experienced or engaged • When key personnel leave the project when not enough information is provided • When matters are not explained clearly • When people are not clear about their roles

19. Issues with undeveloped instructions or unengaged instructors • Drafter is left to develop the policy and take responsibility for both the drafting and the policy • “Post box” syndrome “policy vacuum” where no one will take responsibility for resolving policy or other problems • Instructor’s organisation may be formally responsible for administration of legislation but subject matter knowledge rests mainly in another organisation • Inefficient use of drafting resources and limited refinement as policy never settles (problems of continuous redesign) • Rewarding for drafter to draft legislation from inadequate instructions but only if sufficient time and policy stability to produce quality outcome

20. Issues with overly directive instructors • Role of drafter can be reduced to that of editor, without sufficient understanding of what is proposed and why • Role confusion can occur with instructor trying to do the drafter’s job and drafter ending up doing instructor’s job • Commissioned drafts may result in neither the drafter nor the instructor understanding fully and clearly the policy intended to be implemented

21. Bill management at select committee stage • Mutual information sharing between the instructing organisation and PCO is crucial • The departmental report when suggesting changes should recommend concepts, not specific words • Showing PCO the departmental report often avoids differences of opinion in front of the select committee • Apply the same process when reading rt documents as when reading drafts of bills

22. Bill management at committee of the Whole House • Last chance for change - but only if it is needed • Advise as soon as possible if an SOP is necessary • Seek to avoid making substantial changes at this stage, because substantial amendments bring with it risks of muddling the overall scheme of the legislation and making it practically unworkable • Special considerations apply if the opposition begins a filibuster

23. policy stages drafting legislative stages Amendments Mar Apr May Jun Jul Aug Sep Oct Nov Dec Jan Feb Mar Apr May Jun Avoid this

24. drafting policy stages legislative stages a Mar Apr May Jun Jul Aug Sep Oct Nov Dec Jan Feb Mar Apr May Jun Achieve this

25. Central aims • Create shared vision • Avoid nasty surprises • Identify what needs doing • Convey what needs doing • Maximise drafting time

26. Key results • Smooth sailing • Timely & tailored solutions • Accurate & effective products • Desired outcomes

27. Problems with urgent amendments • Requests for urgent amendments usually come at the most inconvenient time • Requests for urgent amendments are frequently characterised by confusion and lack of clarity • Particular problems arise when the persons giving the instructions were not present at the discussions leading to the agreed change

28. Problems with urgent amendments: Damage limitation strategies • Try to negotiate and where possible extend deadlines for production of the amendment • Aim for the minimum legislative changes to give effect to the policy (this is a damage limitation strategy as it limits the scope for error) • Use several pairs of eyes to critique draft amendments at short notice • Confirm details of meetings not attended by officials (as a cross check of any discrepancy between written communications and oral agreements)

29. Problems with urgent amendments: Damage limitation strategies―cont’d • You need to make judgement calls on what is or is not workable. Vary a clearly unworkable instruction to make the amendment workable (even if it needs subsequent amendment to meet political expectations) • Have a back up person to fill in for your role (if for some reason you are not available)

30. Online resources PCO guide online: www.pco.parliament.govt.nz/instructing-the-pco/ LAC tips online: www.justice.govt.nz/lac/